Justice must also be seen to be done

One of the first things law students learn is the famous phrase, by Lord Chief Justice Gordon Hewart, ‘Not only must Justice be done; it must also be seen to be done.’

It basically means that justice does not mean much if people see it as being an injustice.

This fits in perfectly with the latest development from the Panama Papers saga, where a judge who is married to a Labour Party MEP rejected a request, made by former PN leader Simon Busuttil, to recuse himself from a politically sensitive case.

After a magistrate ruled that there should be a magisterial inquiry to determine whether crimes were committed in the infamous scandal, the defendants, who include Prime Minister Joseph Muscat, Tourism Minister Konrad Mizzi and Nexia BT’s Brian Tonna, filed appeals.

By chance, those appeals landed in Antonio Mizzi’s lap.

The Nationalist Party immediately objected, and insisted that Mizzi should not be the one who hears the appeals, because of his obvious link to the Labour Party.

We agree that the judge should have recused

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himself in this particular case.

Let us be clear. We are not questioning his integrity. Antonio Mizzi has nothing but the soundest of reputations. His credentials when it comes to jurisprudence speak for themselves and are not being called into question in any way, shape or form.

But we have to remember that this is also about public perception. People see hidden agendas, ulterior motives and hidden hands at play virtually wherever they look. And in this case they see a judge who is married to and lives with a Labour MEP – one who has been quite vocal about the subject. Marlene Mizzi even accompanied the PM to Strasbourg for a special sitting on the scandal and its fallout. On that occasion she had insisted that the debate “should not have taken place and is motivated purely out of partisan reasons”.

The judge, in his decision, insisted that he was never involved in politics and was never a member of any political parties. He also said he had never associated himself with his wife’s political views.

Unfortunately, this is not enough.

The truth is that, while Antonio Mizzi will undoubtedly hand down an impartial decision, people will still look at the ruling with suspicion, whichever way it may go. Were he to decide that Muscat, Mizzi and company should not be criminally investigated, nationalists will say that he is siding with the PL. Were he to do the opposite, labourites will say he did so in order not to appear weak or biased.

While it is true that in such a tiny country there will always be some kind of conflict of interest, there can be no shred of doubt on cases that are so politically sensitive.

Granted, this is not comparable to a hypothetical (but plausible) situation where the appeals had landed before judges or magistrates who were directly appointed by the administration and who, in people’s eyes, are indebted to Castille.

But there is still a significant link between Mr Justice Mizzi and the PL, through his wife the PL MEP. And in people’s eyes, no decision handed down by the judge, especially in such a politically controversial case, can be seen to be impartial.